Case No. UKUT-00677-(IAC)

upon which the Secretary of State may certify a removal under paragraph (2) include (in particular) that P would not, before the appeal is finally determined, face a real risk of serious irreversible harm if removed to the country or territory to which P is proposed to be removed. (4) If P applies to the appropriate court or tribunal (whether by means of judicial review or otherwise) for an interim order to suspend enforcement of the removal decision, P may not be removed from the United Kingdom until such time as the decision on the interim order has been taken, except— (a) where the expulsion decision is based on a previous judicial decision; (b) where P has had previous access to judicial review; or (c) where the removal decision is based on imperative grounds of public security. (5) In this regulation, “finally determined” has the same meaning as in Part 6. 29AA Temporary admission in order to submit case in person (1) This regulation applies where – (a) a person (“P”) was removed from the United Kingdom pursuant to regulation 19(3)(b); (b) P has appealed against the decision referred to in sub-paragraph (a); (c) a date for P’s appeal has been set by the First tier Tribunal or Upper Tribunal; and (d) P wants to make submissions before the First tier Tribunal or Upper Tribunal in person. (2) P may apply to the Secretary of State for permission to be temporarily admitted (within the meaning of paragraphs 21 to 24 of Schedule 2 to the 1971 Act, as applied by this regulation) to the United Kingdom in order to make submissions in person. (3) The Secretary of State must grant P permission, except when P’s appearance may cause serious troubles to public policy or public security. (4) When determining when P is entitled to be given permission, and the duration of P’s temporary admission should permission be granted, the Secretary of State must have regard to the dates upon which P will be required to make submissions in person. (5) Where— (a) P is temporarily admitted to the United Kingdom pursuant to this regulation; (b) a hearing of P’s appeal has taken place; and (c) the appeal is not finally determined, P may be removed from the United Kingdom pending the remaining stages of the redress procedure (but P may apply to return to the United Kingdom to make submissions in person during the remaining stages of the redress procedure in accordance with this regulation). (6) Where the Secretary of State grants P permission to be temporarily admitted to the United Kingdom under this regulation, upon such admission P is to be treated as if P were a person refused leave to enter under the 1971 Act for the purposes of paragraphs 8, 10, 10A, 11, 16 to 18 and 21 to 24 of Schedule 2 to the 1971 Act. (7) Where Schedule 2 to the 1971 Act so applies, it has effect as if— (a) the reference in paragraph 8(1) to leave to enter were a reference to admission to the United Kingdom under these Regulations; and (b) the reference in paragraph 16(1) to detention pending a decision regarding leave to enter or remain in the United Kingdom were to detention pending submission of P’s case in person in accordance with this regulation. (8) P will be deemed not to have been admitted to the United Kingdom during any time during which P is temporarily admitted pursuant to this regulation. 4. Also relevant is regulation 26(1), which provides that “Subject to the following paragraphs of this regulation, a person may appeal under these Regulations against an EEA decision”, and regulation 29 which prescribes the effect of appeals to the First-tier Tribunal or Upper Tribunal. Regulation 29(3) provides that: “If a person in the United Kingdom appeals against an EEA decision to remove him from the United Kingdom ( other than a decision under regulation 19(1(3)(b )), any directions given under section 10 of the 1999 Act or Schedule 3 to the 1971 Act for his removal from the United Kingdom are to have no effect, except in so far as they have already been carried out, while the appeal is pending.” The words in italics were inserted with effect from 28 July 2014. 5. It is as well to mention also regulation 19(3) which specifies that subject to two exceptions: “an EEA national who has entered the United Kingdom or the family member of such a national who has entered the United Kingdom may be removed if- (a) that person does not have or ceases to have a right to reside under these Regulations; (b) the Secretary of State has decided that the person’s removal is justified on grounds of public policy, public security or public health in accordance with regulation 21”; or (c) the Secretary of State has decided that the person’s removal is justified on grounds of abuse of rights in accordance with regulation 21B(2). Home Office Guidance 6. To accompany the insertion of regulations 24AA and 29AA the Home Office also issued a document entitled “Regulation 24AA Certification Guidance for European Economic Area deportation cases”, which we have annexed in its Version 2.0, 20 October 2014 form. It explains that when the regulations came into force it was with an initial cohort limited to persons aged 18 or over who do not have a genuine and subsisting parental relationship with a dependent child or children. That first phase ended on 17 October 2014. Section 2 deals with cases not suitable for regulation 24AA certification. Section 3 addresses when to certify a human rights claim under regulation 24AA and at 3.3. (real risk of serous irreversible harm) and 3.4. (timing of certification) the caseworker is instructed to see for guidance the section 94B certification guidance for non-EEA nationals. Section 4 deals with interim orders. Section 5 concerns re-entry to present appeal in person. The application 7. The applicant is a citizen of Lithuania and seeks judicial review of the decision made by the respondent to certify his removal from the United Kingdom under regulation 24AA of the 2006 Regulations. That decision was originally made on 10 December 2014, at the same time as he was served a reasons for deportation letter and a deportation order. On 17 March 2015 the respondent issued him with a supplementary decision to certify his removal under regulation 24AA, together with a new notice of decision to make a deportation order. His judicial review claim form lodged on the same day identifies the decision being challenged as a decision of 12 March to set removal directions for 18 March 2015, but it is common ground that it is the underlying decision to certify that is in issue in these proceedings (we return to this matter in a moment). On the same day the applicant applied for judicial review he also applied for an interim injunction to prevent removal. This was granted on the specific basis that the position regarding the applicant’s appeal ‘should be clarified before any further steps are taken to remove the applicant”. It was ordered that the respondent was not to remove the applicant until determination of this application or further order. The statutory appeal 8. The applicant had earlier (in January 2015) lodged a statutory appeal against the EEA decision to make a deportation order against him. At the date he brought his judicial review proceedings (17 March 2015) his statutory appeal was still pending. When permission was granted on 20 August 2015 to bring this judicial review, it was assumed that the applicant had not yet had a hearing before the First-tier Tribunal of his statutory appeal. In point of fact we now know that by then his appeal had been heard by the First-tier Tribunal and dismissed on 27 May 2015. However, he has applied for permission to appeal to the Upper Tribunal, which means that, albeit it is at a different stage, his statutory appeal is still one which is pending. 9. The reason why the applicant has found himself subject to adverse Home Office measures is that on 13 November 2013 he was arrested and on 22 January 2014 he was convicted of possession of a controlled drug class A – with intent to supply. For this offence he was sentenced to 28 months’ imprisonment (with forfeiture and destruction of drugs and paraphernalia) and ordered to pay a victim surcharge. He was also sentenced to four months’ consecutive imprisonment (with forfeiture and destruction of 440 counterfeit £10 bank notes) for an offence of having counterfeit banknotes . The decision under challenge 10. It is common case that the challenge brought in this judicial review is to the decision to certify under regulation 24AA taken on 10 December 2014. The further decision to certify taken on 17 March 2015 was specifically described as being supplementary and we entirely agree that this was all it was. The gravamen of the applicant’s challenge in December 2014 was that the decision to certify was unlawful because it prevented him from being present at his statutory appeal and to that end the interim relief he sought was an interim order prohibiting his removal. 11. As already noted, the applicant has had since then a hearing before the First-tier Tribunal, at which he was able to attend and present his case and he has also had a decision on his appeal: on 27 May 2015 the First-tier Tribunal dismissed his appeal against the deportation order against him under regulation 19(3). 12. Two things flow from this. First, even if the applicant is successful in his judicial review application, he cannot expect relief aimed at securing his attendance at his statutory appeal before the First-tier Tribunal as he has already achieved this. Second, if he is unsuccessful in this judicial review and the respondent acts to remove him by way of directions, he will still be entitled to apply under regulation 29AA to return to be present in person at any relevant hearing for as long as his appeal is still pending. 13. Nevertheless, particularly because his appeal remains pending, we do not consider that his application has been rendered academic. Success in this application would have inevitable consequences for any further decision to certify in respect of what regulation 29(5) refers to as “the remaining stages of the redress procedure in accordance with this regulation”. Given the wide-ranging nature of the submissions before us in this case, our decision may additionally assist in clarifying the proper ambit of regulations 24AA and 29AA in other cases. The grant of permission 14. In the grant of permission to bring judicial review proceedings made on 20 August 2015 reference was made to the case of